Family Law Blog

Comment on divorce & family law

Commonlaw marriage should remain a myth

More and more children are born out of wedlock. Figures from the ONS show that in 2008, the number of births inside marriage was 374,283, while the figure for outside was 312,804. It won’t be long before more youngsters have unmarried parents at the start of their life than those whose parents have tied the knot.

This is causing growing concern in some sectors of society, with John Ermisch, of the Institute for Social and Economic Research telling the Daily Mail: 'The rise in births outside marriage should be a major cause for concern. Unmarried couples with children are much more likely to break up.'

Parents who have children out of wedlock can give as stable and loving a home as those who don’t. No question about that. There is not anything inherent in the state of being married that means home life will be better. I guess the suggestion though is that it is more of a commitment so some people might be minded to work at things harder if they are married than if they are simply co-habiting.

This brings us back then to the debate about living together agreements as some sort of half-way house. Living together agreements should be championed, as I have said before. They are not a replacement for marriage, which I still believe brings with it many benefits over and above the obvious declaration of love and commitment, including legal responsibilities relating to each other. However, the simple fact is that fewer people are getting married. To ignore those who choose to live together but not walk down the aisle in terms of their rights is wrong.

I also think pushing living together agreements is preferable to returning to an archaic system along the lines of “commonlaw marriage”. This is the widely held but completely incorrect belief that after a couple have been living together for a certain amount of time, they are considered commonlaw man and wife and so enjoy the same rights as married couples. It is a woolly concept at best so I was surprised to see a column in the Evening Standard this week proposing it, to protect those who mistakenly believe it is already real. A return to commonlaw marriage (it apparently hasn’t been around since the 1700s) is not an option. Indeed, work still obviously needs to be done to communicate the fact that it does not exist.

There is a still a good reason for marriage and I think this should be the idyll. However, highlighting the benefits of living together agreements and getting more people to sign up can go some way to ensuring that those who choose not to get married are not left high and dry by a split after years of being together with someone.